Thomas v. Cooley

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

CALVIN THOMAS DOCKET NO. 2:23-cv-0592

SECTION P

VERSUS JUDGE JAMES D. CAIN, JR.

KEITH COOLEY MAGISTRATE JUDGE LEBLANC

REPORT AND RECOMMENDATION

Before the court is a Motion to Dismiss filed on November 22, 2023, pursuant to Rules

12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure by defendants, Keith Cooley, Ricky

Kenon, Krystle Simon and Lt. Seal. Doc. 18. This motion is in response to the complaint filed by

plaintiff Calvin Thomas (“Thomas”) seeking relief pursuant to 42 U.S.C. § 1983 and for protection

of plaintiff’s First Amendment rights under the Religious Land Use and Institutionalized Persons

Act (RLUIPA). Doc. 1. Thomas filed an opposition to the defendants’ motion on January 23,

2024. Doc. 26. The motion is now ripe for review.

The motion has been referred to the undersigned for review, report, and recommendation

in accordance with the provisions of 28 U.S.C. § 636. For the following reasons, IT IS

RECOMMENDED that the defendant’s Motion to Dismiss (doc. 18) be GRANTED IN PART

and DENIED IN PART.

I. BACKGROUND

At all times pertinent to this case Thomas was confined to the custody of the Louisiana

Department of Public Safety and Corrections and housed at Allen Correctional Center (“ACC”) in

Kinder, Louisiana. Thomas claims to be a practitioner of the Rastafari religion, and he summarizes

his complaints against defendants this way:

I filed said ARP due to the harassment and religious profiling of

rastafarians, by Head Warden Cooley, Chaplain Kennon, and asst Warden Simon

using color of the law to enforce two non-neutral policies without a legitimate

penological objective strategically attacking hair exemption status to deter

Rastafarians from growing hair while practicing their faith via (diet, forced church).

Doc. 1, p. 4. Specifically, his Complaint alleges that, in a meeting on or about September 28,

2022, at which Warden Cooley was present, all Rastafarians at ACC were “called upon and

informed they were to immediately adhere to new diet (non-meat) regardless, and violators would

lose exemption status and forced to cut hair.” Id. Further, Thomas complains that, on October 12,

2022, all Rastafarians received a memo from Chaplin Kennon, stating that it was mandatory that

they attend church service at least 50% of the time or risk losing hair exemption status and, again,

be forced to cut their hair. Id.

Thomas’s first step Administrative Remedy Procedure (“ARP”) submission was reviewed

by Warden Simon, who denied his request for remedy. See doc. 1, att. 2, p. 1. The response was

prepared and signed by Lieutenant Seal. Id. Thomas sought review of the First Step Response

(doc. 1, att. 2, p. 1), and received a Second Step Response that addressed meal options for

Rastafarians but did not speak to Thomas’s claims of harassment based on the church attendance

policy (doc. 1, att. 2, p. 2).

Thomas alleges that the church attendance policy being instituted at ACC is arbitrary and

capricious and is implemented to target and deter Rastafarians from growing their hair while

practicing their faith. He alleges that the rule violates the First Amendment, because it does not

demonstrate a neutral policy, there is no legitimate penological objective, and it does not “effect

[sic] prison resources or impact accommodation of asserted rights on prison or inmates.” Doc. 1,

att. 2, p. 4. Thomas requests the following relief: “[a]n independent external reviewer and federal

transparency for objectivity to eliminate defendants impunity,” for “said officials [to be] held

accountable,” to be “[p]rovided DOC policy regarding hair exemption criteria, eligibility and

forfeiture,” and monetary relief for compensatory, nominal and punitive damages. Doc. 1, p. 4,

¶V. Finally, Thomas is seeking to be permanently remanded to federal custody to avoid the risk

of retaliatory actions for his complaints. Doc. 1, att. 2, p. 6.

II. LAW & ANALYSIS

A. LEGAL STANDARDS OF REVIEW

1. 12(b)(1) Motion to Dismiss

A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) may

be treated as either a facial or factual challenge to the court’s jurisdiction. Williamson v. Tucker,

645 F.2d 404, 412-13 (5th Cir. 1981) cert. denied, 102 S.Ct. 396 (1981). Facial attacks, which

question the sufficiency of the pleadings, require the court to consider the allegations in the

complaint as true. See Spector v. L Q Motor Inns, Inc., 517 F.2d 278, 281 (5th Cir. 1975). During

factual challenges to subject matter jurisdiction, however, courts are allowed to look outside of the

pleadings and no presumptive truthfulness attaches to the allegations in the complaint. Williamson,

645 F.2d at 413 (citing Mortensen v. First Federal Savings and Loan Association, 549 F.2d 844,

891 (3rd Cir. 1977)).

The district court has the ability to dismiss a complaint for lack of subject matter

jurisdiction based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Williamson, 645 F.2d at 413. If dismissal is sought for a

jurisdictional defect that centers upon the lack of congressional waiver of the government’s

sovereign immunity, resolution is never appropriate by way of summary judgment, but must be

resolved by way of a motion to dismiss for lack of subject matter jurisdiction. Stanley v. Central

Intelligence Agency, 639 F.2d 1146, 1156-57 (5th Cir. 1981).

2. 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) governs dismissal of a case for failure to state a

claim. The Court should dismiss a complaint if, taking all allegations of material fact as true and

construing them in the light most favorable to the nonmoving party, the complaint fails to state a

claim entitling the plaintiff to relief. Parks School of Business, Inc. v. Symington, 51 F.3d 1480,

1484 (9th Cir. 1995). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), the Supreme

Court abandoned the then-familiar rubric of Conley v. Gibson, 355 U.S. 41, 45 46 (1957), under

which a complaint was deemed sufficient “unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.” Twombly required

that a complaint include “[f]actual allegations [sufficient] to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. To withstand a motion to dismiss, a complaint “must

contain something more… than… a statement of facts that merely creates a suspicion [of] a legally

cognizable right of action.” Id. at 555. Rather, a complaint must “plausibly” show a valid claim.

Id. at 557.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court applied the pleading standards of Rule

8 of the Federal Rules of Civil Procedure, as clarified in Twombly, to a Bivens case alleging

religious discrimination by a post September 11, 2001, immigration detainee. Iqbal held that

Twombly's plausibility standard is part and parcel of Rule 8's requirement that every complaint

“show[…] that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 684; Twombly, 550 U.S. at

555. Amplifying Twombly's holding, Iqbal emphasized that "Rule 8[…] does not unlock the doors

of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. If the

“allegations are conclusory,” they are “not entitled to be assumed true.” Id. at 681. To determine

the adequacy of a Constitutional claim for money damages against a federal officer, conclusory

allegations are disregarded, and a court is to ask whether well pled factual allegations plausibly

suggest that a defendant personally violated one or more of a plaintiff's clearly established

Constitutional rights. Id. A complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. at 678, citing Twombly, 550 U.S. at 555. Plaintiff must

set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

Id. Facial plausibility demands more than the mere possibility that a defendant committed

misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at

678-69.

Usually, in considering a motion to dismiss pursuant to Rule 12(b)(6), a district court must

limit itself to the face of the complaint including attachments thereto. However, applicable

jurisprudence establishes exceptions to this restriction wherein the court may take judicial notice

of documents or information which constitute matters of public record when considering a Rule

12(b)(6) motion to dismiss. Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994); Haygood v.

Begue, 2014 WL1320152 at 1 (W.D. La. March 31, 2014). The courts may consider documents

filed in support of a motion to dismiss under Rule 12(b)(6), without converting the motion to a

motion for summary judgment, when these documents are referenced in the complaint and central

to the claim. Taylor v. City of Shreveport, 798 F.3d 276, 279 & n.4 (5th Cir. 2015); Kane Enters.

v. MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003) (citing Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).

B. DISCUSSION

1. Eleventh Amendment Immunity

The defendants argue that Thomas’s claims for monetary damages against them in their

official capacities as state employees are barred by the Eleventh Amendment. Under the Eleventh

Amendment of the United States Constitution, a non-consenting state is immune from any lawsuit

seeking monetary damages or equitable relief brought in federal courts by her own citizens or by

the citizens of another state. Edelman v. Jordan, 415 U.S. 651 (1974). Although Congress has the

power to abrogate this immunity through the Fourteenth Amendment, it has not done so as to

claims for the deprivation of civil rights under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332,

345 (1979). The Eleventh Amendment grants a state, or "arm of the state," sovereign immunity

from a suit against it in federal court. Vogt. Bd. Of Comm'rs of Orleans Levee Dist., 294 F.3d 684,

688-89 (5th Cir. 2002) (citing Regents of the Uni. Of Cal v. Doe, 519 U.S. 425, 429 (1997)).

Moreover, neither a State, nor its officials acting in their official capacities, are "persons" against

whom a claim for money damages might be asserted under § 1983. Will v. Mich. Dep't of State

Police, 491 U.S. 58 (1989). To the extent Thomas is seeking monetary damages against the

defendants in their official capacities, such claims are barred by the Eleventh Amendment and

should be dismissed.

Thomas, however, also appears to be seeking injunctive relief from the church attendance

policy—i.e., he wants the defendants to be prevented from implementing or continuing this policy

testing his devoutness to the Rastafari religion. The Fifth Circuit Court of Appeals has noted:

In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the

Supreme Court carved out an exception to Eleventh Amendment immunity. The

Court held that enforcement of an unconstitutional law is not an official act because

a state can not confer authority on its officers to violate the Constitution or federal

law. See American Bank & Trust Co. of Opelousas v. Dent, 982 F.2d 917, 920–21

(5th Cir.1993). To meet the Ex Parte Young exception, a plaintiff's suit alleging a

violation of federal law must be brought against individual persons in their official

capacities as agents of the state, and the relief sought must be declaratory or

injunctive in nature and prospective in effect. See Saltz v. Tennessee Dep't of

Employment Sec., 976 F.2d 966, 968 (5th Cir.1992).

Aguilar v. Texas Dep't of Crim. Just., 160 F.3d 1052, 1054 (5th Cir. 1998), cert. denied, 528 U.S.

851 (1999). In this case, Thomas is seeking to prospectively enjoin defendants, in their official

capacities, from enforcing the alleged unconstitutional church attendance policy and the loss of

the hair exemption for failing to meet that policy’s requirements. At this point in the proceedings,

Thomas has adequately alleged a claim for such prospective injunctive relief within the Ex Parte

Young exception to Eleventh Amendment immunity.

To the extent Thomas seeks monetary relief from the defendants in their official capacities

pursuant to § 1983, all such claims are barred by the Eleventh Amendment and should be dismissed

for lack of subject matter jurisdiction. Castro v. Wallace, No. 21-50909, 2023 WL 3270906, at *1

(5th Cir. May 5, 2023) (“An individual state officer sued in his official capacity for § 1983 money

damages is entitled to immunity. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). Dismissal

of such claims is proper under Rule 12(b)(1) . . . .”). Contrarily, Thomas’s claims against

defendants in their official capacities seeking prospective injunctive relief are not precluded by

sovereign immunity concerns and are within this Court’s subject matter jurisdiction. Id. (“Claims

for declaratory and prospective injunctive relief against such state officers in their official

capacities are permissible. Aguilar v. Texas Dep't of Crim. Just., 160 F.3d 1052, 1054 (5th Cir.

1998).”).

2. Prison Litigation Reform Act

Defendants also correctly note that the Prison Litigation Reform Act (“PLRA”) precludes

a prisoner's claim for compensatory damages where no physical injury is alleged. See 42 U.S.C. §

1997e(e); Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005) ("Section 1997e(e) applies to all

federal civil actions in which a prisoner alleges a constitutional violation, making compensatory

damages for mental or emotional injuries non-recoverable, absent physical injury."). Because

Thomas does not allege facts showing that he has suffered a physical injury, his claim for

compensatory damages must be dismissed for this additional reason as barred by the PLRA.

3. First Amendment

The First Amendment provides that Congress shall make no law respecting the

establishment of religion or prohibiting the free exercise thereof. U.S. Const., amend I. While

prisoners retain their First Amendment rights, including the right to free exercise of religion, they

only retain those First Amendment rights which "are not inconsistent with his status as a prisoner

or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417

U.S. 817, 822 (1974). Thus, a prisoner's right to practice his religion may be limited where the

prison officials establish that there is a legitimate penological objective. Id.; Cruz v. Beto, 405 U.S.

319, 322 n.2 (1972) (per curiam); Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). "[W]hen a

prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests." O'Lone v. Estate of Shabazz, 482 U.S. 342,

349 (1987) (quoting Turner v. Safley, 482 U.S. 78 (1987)).

With respect to Thomas's First Amendment claim, a prison policy or practice will not be

found unconstitutional if it is reasonably related to a legitimate penological objective of the facility.

Hay v. Waldron, 834 F.2d 481, 487-87 (5th Cir. 1987). This general statement of the law has been

upheld when a regulation prevented a group of Muslim inmates from attending Jumu'ah, the central

religious ceremony of the Muslim faith, similar to Christian Sunday services or Saturday services

of the Jewish faith. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 360 (1987). This rule has also

been applied to regulations that required Rastafarians to cut their hair, even though keeping one's

hair unshorn and unwashed is a tenet of the Rastafari religion. See Scott v. Mississippi Dept. of

Corrections, 961 F.2d 77 (5th Cir. 1992), and Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995).

O’Lone, Scott and Hicks, however, are not controlling in this case. In each of those cases,

the courts were provided specific and legitimate penological concerns sought to be addressed by

the policies at issue. Defendants in this matter state only that “[a]ny policy enacted by Allen

Correctional was reasonably related to legitimate penological objectives” and offer a generalized

reference to “policies designed to preserve internal order, discipline and security.” Doc. 18, att. 1,

pp. 6-7. But defendants make no effort to explain how a policy of required church attendance to

avoid having one’s hair cut advances any legitimate penological interest. For this reason, the

defendants' Motion to Dismiss, insofar as it seeks to dismiss Thomas’s request for injunctive relief

for violating his First Amendment free exercise rights, should be denied.

Additionally, in his opposition to the defendants’ Motion, Thomas contends the

defendants’ actions “causes at least nominal damages.” Doc. 26, p. 2. “As the Supreme Court and

this circuit have emphasized, a party who proves a violation of his constitutional rights is entitled

to nominal damages even when there is no actual injury.” Lewis v. Woods, 848 F.2d 649, 651 (5th

Cir. 1988); see also Hanks v. Keith, No. 1:13-CV-02999, 2016 WL 6989435, at *3 (W.D. La. Sept.

7, 2016), report and recommendation adopted, No. 1:13-CV-02999, 2016 WL 6990538 (W.D. La.

Nov. 28, 2016) (“Thus, nominal damages are the appropriate award where constitutional rights

have been violated but the plaintiff has not sustained, or proven, actual damages.”). For these

reasons, defendants’ Motion also should be denied with respect to Thomas’s claim for nominal

damages.

4. RLUIPA

The Constitution is not the only source for protecting an inmate's right to worship. In fact,

the Religious Land Use and Institutionalized Persons Act of 2000, § 2 et seq., 42 U.S.C.A. §

2000cc et seq. ("RLUIPA"), provides more expansive rights than those protected by the

Constitution. RLUIPA provides, in relevant part, that:

No government shall impose a substantial burden on the religious exercise of a

person residing in or confined to an institution . . . even if the burden results from

a rule of general applicability, unless the government demonstrates that imposition

of the burden on that person—

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

RLUIPA defines "religious exercise" broadly to include "any exercise of religion, whether

or not compelled by, or central to, a system of religious belief." 42 U.S.C. §2000cc-5(7)(A).

Essentially, "RLUIPA prevents government practices that substantially burden the religious

exercise of an inmate unless the practice furthers a compelling interest and is the least restrictive

means of doing so." Brown v. Collier, 929 F.3d 218, 229 (5th Cir. 2019).

a. Monetary Damages

RLUIPA does not waive the state's Eleventh Amendment immunity, and accordingly,

monetary damages are not available for claims brought against state employees in their official

capacities under RLUIPA. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 331 (5th Cir.

2009), aff'd sub. nom., Sossamon v. Texas, 563 U.S. 277 (2011). Additionally, RLUIPA does not

create a cause of action for damages against defendants in their individual capacities. See

Sossamon, 560 F.3d at 329, 331; Copeland v. Livingston, 464 F. App'x 326, 330 (5th Cir. 2012)

(unpublished) (explaining that "RLUIPA does not create a private right of action against

individuals for damages.").

Thomas states in his opposition to the defendants’ Motion that he “is now aware of

regulations and/or restrictions of RLUIPA for monetary damages being barred.” Doc. 26, p. 2.

However, he believes that the defendants’ actions “causes at least nominal damages.” Id. Nominal

damages are also considered to be compensatory in nature, and not an equitable remedy. Landgraf

v. USI Film Prods., 968 F.2d 427, 431 (5th Cir. 1992). Therefore, Thomas’s claim for monetary

damages—including nominal damages—under RLUIPA should be dismissed.

b. Injunctive Relief

Thomas also seeks injunctive relief under RLUIPA. First, he asks the Court to enjoin the

defendants from enforcing the policy that requires Rastafarians to attend church services at least

50% of the time.1 The Court should retain plaintiff’s claim for injunctive relief as to this claim.

Next, Thomas asks this Court to remand him to federal custody. This claim is not

cognizable because the relief that he seeks cannot be granted either through federal habeas corpus

or in a Section 1983 civil rights lawsuit. As a general rule, the federal district courts cannot order

prisoners to be transferred from state into federal custody because the housing location of prisoners

is a matter within executive rather than judicial purview. Boothe v. Campbell, 2013 U.S. Dist.

LEXIS 111808 (E.D. Tex., July 14, 2013) (citing United States v. Warren, 610 F.2d 680, 684-85

(9th Cir. 1980) (holding that district court abused its discretion by ordering prisoner serving state

and federal sentences transferred into federal from state custody)). While certain extraordinary

1 Thomas originally also complained he and other Rastafarian inmates were being required to adhere to a vegan diet,

regardless of being vegan or not, or risk losing their hair exemption and be forced to cut their dreadlocks. Pursuant to

Plaintiff’s Exhibit C, attached to his response to the defendants’ motion, “a non-pork diet has been added for an

alternative for those inmates who practice the Rastafarian religion that eat meat.” Doc. 26, att. 1, p. 5. Accordingly,

any claim by Thomas for injunctive relief associated with this issue is moot. See, e.g., Barnes v. Pierce, 338 F. App'x

373, 376 (5th Cir. 2009). The only remaining possible burden on Thomas’s ability to exercise his religion is the

religious service attendance requirement.

circumstances may justify a federal district court in ordering state officials to remove prisoners

from a particular facility and place them in an institution selected by the officials, see Streeter v.

Hopper, 618 F.2d 1178, 1182 (5th Cir. 1980), it is doubtful that the court has the authority to order

federal prison officials to accept particular state prisoners. Fisher v. Goord, 981 F.Supp. 140

(S.D.N.Y. 1997) (holding that federal courts do not have the authority to force federal prison

officials to accept state prisoners, and distinguishing Walker on the basis that the order in that case

was directed to the state officials who had jurisdiction over the prisoner); Knight v. Livingston,

2008 U.S. Dist. LEXIS 9743, 2008 WL 380358 (E.D.Tex., February 11, 2008, no appeal taken),

citing Moore v. Schuetzle, 2006 U.S. Dist. LEXIS 99433 (D.N.D., January 23, 2007) (unpublished)

(available on WESTLAW at 2006 U.S. Dist. LEXIS 99433, 2007 WL 201115). In any event,

Plaintiff’s request for a transfer to federal custody should be denied.

III. CONCLUSION

For the foregoing reasons,

IT IS RECOMMENDED that the defendant’s Motion to Dismiss (doc. 18) be

GRANTED IN PART as to the following aspects of the Plaintiff’s claims: (a) claims for monetary

damages under § 1983 against defendants in their official capacities; (b) claims for compensatory

damages under the PLRA; (c) First Amendment claims for compensatory damages; (d) claims for

monetary damages under RLUIPA; and (e) request for transfer and DENIED IN PART as to the

plaintiff’s claims for prospective injunctive relief to prevent defendants’ ongoing application of

the religious service attendance policy and for nominal damages for violation of his First

Amendment right to free exercise of his religion.

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil

Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to

file written objections with the Clerk of Court. Failure to file written objections to the proposed

factual findings and/or the proposed legal conclusions reflected in this Report and

Recommendation within fourteen (14) days of receipt shall bar an aggrieved party from attacking

either the factual findings or the legal conclusions accepted by the District Court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1429-

30 (Sth Cir. 1996).

THUS DONE AND SIGNED in chambers this 27th day of September, 2024.

/

~____TAOYIAS LEBLANC

UNITED ST*s?ES MAGISTRATE JUDGE

-13-